In Braceforce Warehousing Ltd –v- Mediterranean Shipping Company (UK) Ltd  EWHC 3839 (QB) the English High Court’s Justice Ramsay suggested, in dicta, that the limitation legislation had nothing to say about when a contractual alternative dispute resolution scheme may be commenced. In this case, it was an expert determination clause. Drafters of such clauses would be wise to include a contractual limitation provision. Here is the case note of an English firm, Boyes Turner.
From the point early on in my career when I thought I learnt that a judgment was good for 15 years until Marcellous’s comment the other day, I laboured under a misapprehension. In fact, according to the Full Federal Court in Dennehy v Reasonable Endeavours Pty Ltd  FCAFC 158; (2003) 130 FCR 494, there is no time limit for executing on a judgment, though rules of court contain some restrictions on issuing warrants long after the judgment was given. For example, after six years from the giving of a judgment by the Supreme Court, one must obtain leave of the Court before obtaining a warrant of seizure and sale, a warrant of possession, or a warrant of delivery: r. 68.02(1)(a). The application may be made ex parte, and must be accompanied by an affidavit explaining the reason for the delay: r. 68.02(3) and (4)(b). But warrants are only one way of debt collection. Self-help may be available; sending some friends to the debtor’s door and requesting payment certainly is; and so too may the defence of set-off be relevant to the adjustment of interests between two parties.
Section 5(4) of the Limitation of Actions Act, 1958 says
‘An action shall not be brought upon any judgment after the expiration of fifteen years from the date on which the judgment became enforceable.’ Continue reading “How long is a judgment good for?”
Here it is. The abstract of the article of greatest interest is as follows:
‘When he delivered his judgment in Pritchard Joyce & Hinds v Batcup  EWHC 20 (QB) Underhill J said that he had striven to avoid hindsight and had reminded himself that the central issue he had to decide was whether any reasonably competent barrister would have given the advice that it was alleged should have been given by S and B (leading and junior counsel), not what he himself, or indeed, any other particular barrister in S and B’s position, might have advised. He found that S and B had been negligent in failing to advise their clients of the time limit applicable to a potential claim against their former solicitors Wellers.’
I posted about this issue, as it arose in a 2007 decision of Justice Forrest, here. Since May 2003, certain Victorian actions for personal injury must be brought within 3 years after the injury was discovered to be attributable to the defendant’s negligence, or 12 years after the allegedly negligence conduct, whichever comes first. Previously the limitation period was six years. The period may be extended by the Court. In Delai v Western District Health Service  VSC 151, Justice Beach explained why he granted the medical negligence claimant’s application. The defendants argued that she had good prospects of suing her solicitor for negligently allowing the limitation period to go by, but that was not a sufficiently cogent consideration to get in the way of the success of the application. I reproduce the whole of the relevant discussion from the judgment:
Personal injuries guru recently turned Supreme Court judge, Justice Forrest, declined an application for an extension of time in which to bring an action for negligence against a cruise line. The case was Gordon v Norwegian Capricorn Line (Australia) Pty Ltd  VSC 517. His Honour said the case against the cruise line was a simple, one issue case. Had the extension application succeeded, the trial would have taken place nine years after the allegedly negligent treatment of a heart attack suffered by the plaintiff at sea. The representation of the plaintiff by his former solicitors S&G Ltd was characterised by ‘ineptitude’, the judge found.
A key reason for declining the extension was the availability of a reasonably simple cause of action for negligence against the plaintiff’s former solicitors. Justice Forrest had more material against which to judge the prospects of success in such a claim than in other cases, where the signficance of the availability of a negligence claim against the applicants’ former solicitors was downplayed. His Honour had enough to conclude that the plaintiff had a ‘powerful if not overwhelming case’ against S&G Ltd (I can feel a settlement coming on…). His Honour set out the law in relation to the relevance of an extension of time application of the availability of a professional negligence claim against a solicitor as follows: Continue reading “Negligence claim against solicitor is a relevant factor in a limitation period extension application”
A Melbourne lawyer has written a book about a landmark Melbourne case. Michelle Schwarz’s A Question of Power; The Geoff Clark Case has just been published by Morrie Schwarz’s Black Inc which also publishes The Monthly and Quarterly Essay. Judging by the ‘top articles this month’ panel, there is a huge thirst out there for knowledge about limitation periods. One of the Clark decisions is a landmark in that area of the law: Stingel v Clark  HCA 37.
I bought the book yesterday and have started reading it. It’s promising. It features slabs of Robert Richter’s cross-examination. It is a book about a trial of a kind which I have not seen too many examples of in recent times. Schwarz is doing a Readings talk with ABC Radio National’s Damien Carrick of the Law Report tomorrow evening at the Hawthorn store. The blurb says: Continue reading “New writing about the law in Melbourne”
Original post: The Law Institute is putting on a lecture at lunchtime on 24 June 2008 by an ex-megafirms lawyer who has gone boutique, Margot Clarkson. It will be about the very specific topic of limitation periods for negligent misstatement cases (though somewhat oddly, the case featured in the flyer, Wardley v Western Australia (1992) 175 CLR 514 is a pure misleading and deceptive conduct case). I treated that topic at some length in an article imaginatively titled ‘Legal Professional Liability Part II’ at (2001) 9 Torts Law Journal 1 (I have reproduced the relevant bit below), and have blogged about it from time to time since (see these posts). It’s a difficult topic, and such a seminar is welcome. It costs $80 for LIV members and $160 for non-members.
This is what I said in the article: Continue reading “Negligent misstatement limitation period lecture”
I was already a fan of the first edition of Judge Stephen Walmsley SC, Alister Abadee, and Ben Zipser‘s excellent Professional Liability in Australia, published by Thomson, and had been waiting for the new edition with interest. I got myself a copy the other day. It’s good, and there are substantial additions since the first edition, including a lot on expert evidence, a new bit on professional discipline, analysis of the Financial Services Reform Act, 2001, analysis of the cases on the civil liability acts and a good analysis of proportionate liability.
It is a text which delves into all of the legislation which clusters around professional liability these days and grapples with it, a thankless task for an Australian text writer compelled to read and understand all of the states’ and territories’ regimes and then synthesise them. So the availability of compensation in professional discipline regimes is treated properly, as is the effect of professional standards legislation, which caps liability for scheme mebers. The research is wide-ranging and thorough: a VCAT decision is cited. It is written from a practical perspective rather than a theoretical perspective. There is not the over-reliance on English authority which sometimes characterises texts in this area. The writing tends to take positions rather than carrying on at great length about parallel or divergent lines of authorities without suggesting which is to be preferred. One suspects that bad decisions have simply been ignored in the hope that they will be forgotten. If only more text writers would operate in this fashion.
Professional negligence is one of those areas of law in which everyone claims to be a specialist. There are, for example, 387 barristers at the Victorian Bar who claim on their web profile to practise in professional negligence. Then there are undoubtedly many others, like me, who haven’t listed their practice areas using the scheme which allows for searching like that.
Thomson has kindly offered a 10% discount for readers of this blog if you go to their bookshop at 160 William St, Melbourne. Alternatively, the book can be purchased online, for $220 inclusive of postage and handling.
In Ralph Cosentino v MY  VCAT 1319, Member Butcher continued a tradition of statutory interpretation of a little technical provision about when service of statutory notices is effective. That tradition, of the Legal Profession Tribunal and its predecessors, has always troubled me. Though it does not seem to have been cited by counsel, a recent decision of a Deputy President of VCAT took the opposite approach: Vitesnik v Macedon Ranges SC  VCAT 598. There is a Legal Profession Act, 2004 notice issued by the Legal Services Commissioner within 60 days of receiving which an applicant must start their VCAT case. Mr Butcher concluded that he would have found that Mr Cosentino did not ‘receive’ it on the day when the Act directed that it was to be ‘taken to have been given to him’. But the question never quite arose, as Mr Butcher used a VCAT Act, 1998 power to excuse the applicant’s use of the wrong originating process and concluded that the proper characterisation of things was that the application, though defective, had been made within time anyway, so that it was appropriate to excuse the procedural defect and recognise the case as having been started within time. Warning: this is a particularly boring decision unless you are a user of VCAT’s Legal Practice List. Continue reading “The 60 day time limit for instituting VCAT proceedings under the Legal Profession Act”
On Friday, the High Court published a near unanimous judgment in Commonwealth of Australia v Cornwell  HCA 16 on the accrual of a cause of action for negligence in which pure economic loss was claimed. I am yet to read the judgment properly, however it is apparent that a cause of action in negligence was found to have accrued decades after the parallel contractual cause of action, which was complete upon breach of a duty of care owed by the Commonwealth to the plaintiff in 1965. Callinan J dissented, saying the cause of action was well and truly statute barred. Neither of the decisions discussed in recent posts, in which a defendant-friendly approach was taken, Winnote v Page, or Jessup v Wetherell, are considered in the decision.
The technical defence is for me a beautiful fascination. A self-confessed “fact Nazi” and chronology enthusiast, I would nevertheless prefer not to have to charge clients for the kind of obsessive mastery of facts in complicated and long-running failed litigation which is the subject of a professional negligence suit unless absolutely necessary. Summary disposition holds a lot of appeal, in other words.
So I know the exquisite schadenfreude the defendants in Jessup v Wetherell  EWHC 2582 (Queen’s Bench) must have indulged in when they beat a professional negligence suit on what I consider to have been a fairly optimistic limitations defence. The clients’ proceedings had been struck out for want of prosecution. They sued their lawyers for damages for delay within 6 years of the striking out. But that wasn’t soon enough for the Queen’s Bench Division. Once again, the English courts held that some damage was first suffered — and hence the cause of action in negligence commenced — not when the claim was struck out for want of prosecution, but when a want of prosecution application, if made by the other side in the original proceedings, would have succeeded. Since the writ came more than 6 years after that time, the case was too late. Australian courts’ jurisprudence is in step with the English courts: see “Mega Firm Escapes Liability for Clear Negligence in Limitations Decision.” Continue reading “The beautiful harshness of English limitation of actions law”
The approach of VCAT’s Legal Practice List to a nice limitations point is illustrated by Wells’s Case,  VCAT 2370 (Senior Member Howell, 16 November 2006), also the subject of this post. What must have been a professional negligence action was commenced just 4 days before the 6th anniversary of the Legal Practitioner ceasing to act for the Client. The limitation period was such that only actions arising in the 6 years before the claim would be within time. The Client said the Legal Practitioner negligently failed to do various things. VCAT decided that only the Legal Practitioner’s conduct during the 4 days during the retainer but within the 6 years before the claim could be enquired into. Continue reading “How a case half in and half out of the limitation period is dealt with”